O'Malley & Madden Weekly

O'Malley & Madden WeeklyWeekly

Topic of the Week

Family Medical Leave Act - What does it provide and are you protected?

The Family and Medical Leave Act (FMLA) was created to help employees balance the demands of the workplace with the needs of their families. The Act requires covered employers to provide reasonable unpaid leave to employees for certain family and medical

Blog of the Week

The #MeToo movement has helped thousands of sexual harassment victims get justice against their harassers. Unfortunately for Amy Swyear, the Seventh Circuit has yet to realize the effects of the movement.

Thought for the Week

"Employers are increasingly using non-disclosure agreements to force workers to sign away their rights to speak out about harassment. By prohibiting this practice, the EMPOWER Act will help ensure that everyone has a safe and dignified work environment."

1. What happens when I call a law office?

Every law firm is different, and may handle speaking with potential new clients differently than another. Some firms do a great deal of screening over the telephone before you are allowed to set up an appointment with an attorney, while others will allow you to set up an appointment and get most of their information from you in a face-to-face meeting.

Sometimes you will speak to a legal assistant or a paralegal instead of an attorney. The legal assistant or a paralegal will then gather the information for an attorney to review your case before a decision is made to set up an appointment.

In case the firm you contact does a thorough screening over the phone, you should be prepared before you start calling law firms to discuss representation. For more information on how to prepare, see question 3 below.

2. Will I be charged to talk to a lawyer to find out whether I may have a case?

Most attorneys charge a fee (called a "consultation" fee) for an initial meeting, but some do not. When you make an appointment to see an attorney, you should make sure you know how long the meeting is expected to last and how much the attorney charges for a consultation. You will generally be charged this fee even if the attorney tells you that you do not have a legal claim against your employer.

If you absolutely cannot afford the lawyer's consultation fee and cannot find a lawyer who doesn't charge one, most states and large cities have legal aid offices or local bar associations that can refer you to a lawyer who may see you for a reduced fee. However, most legal aid offices will not handle employment discrimination cases. Some offices do take cases where individuals have been denied overtime pay or been subjected to dangerous working conditions. Depending on the type of case that you have, some civil rights organizations might be interested in the case.

3. How should I prepare for my first meeting or telephone conversation with a lawyer?

The attorney will ask you questions designed to get the relevant information quickly and to determine if your situation is something the attorney is capable of and interested in handling. The attorney must also first check for conflicts of interest (where the attorney formerly or currently represents interests or individuals potentially involved in your case and therefore might appear biased or unable to fully represent your interests). In addition to the employer's name, you will also be asked for the names of people involved in your case.

The attorney will want to know what acts you believe harmed you and what reasons were given by the employer to justify the employer's decisions. The attorney will ask questions to determine whether you can prove that the reasons given are not true. Finally, the attorney needs to know how you were damaged and what you expect to recover. Many clients have unrealistic expectations about their case because of things they read in the papers or were told by others. Each case is different. Proof of events, credibility of witnesses and many other circumstances and variables make each case unique. You and your attorney must focus on your specific case.

While you talk, in addition to getting information, the attorney will evaluate you as a witness and client, in areas such as memory, honesty, appearance, attitude, cooperation, communication skills and many other characteristics. Do not lie or mislead your attorney. Understandably, clients may try to make their case look better than it is by saying that the company always settles its claims or that witnesses will come forward. Attorneys are not impressed with these representations. Please be honest and direct. You and your attorney must have trust and confidence in each other to give you the best chance to resolve your claim.

Go to the initial meeting prepared to show your lawyer not only the injustice of your dismissal but how you think the law was violated. Take supporting documents such as evaluations, witness statements, evidence concerning treatment of others, and medical records. Explain what you think your employer is likely to say in its defense. Prepare a summary of your economic (financial) damages.

4. Will the lawyer tell me whether I have a case or not?

In most situations, no. The law governing employment relations does not contain many hard and fast rules about what conduct is or is not legal. There are few black or white answers to legal problems. When you first talk with an attorney, do not be frustrated if the attorney is unable to tell you whether you have an airtight case. Also, do not be surprised if the lawyer you talk with agrees that you were treated unfairly, but says that the law provides you with no legal recourse.

No attorney will be able to tell you whether you will win a case, even if your evidence is strong. Most of the time, the lawyer will point out the probabilities for success as well as the weaknesses in your case that could make the chance for victory at trial a slim one. Employment cases are difficult to win, expensive, distracting, and time consuming.

5. How will a lawyer decide whether to take my case?

In general, there are three major criteria attorneys use to decide whether to take a case to litigation:

the client;

the merits of the claims; and

damages.

Sometimes the employer or the number of clients (if a class action case is a possibility) and the scope of the claims are also factors in determining whether the attorney has the experience and resources to litigate a case.

The Client: While the facts and legal arguments go a long way in winning a trial, the jury's view of the plaintiff (the worker bringing the lawsuit) and other witnesses is just as important. Appearance, credibility, memory, ability to communicate and being reasonable are all traits that help the jury to trust a witness. While it is not absolutely necessary to be excellent in all these areas, attorneys for both sides, employees and employers, look at these qualities in evaluating the chances of winning or losing at trial and thus, settlement value of a claim.

The Merits: There are many types of employment claims that have differing elements of proof. In the employment discrimination context, attorneys use a court-developed method based on a shifting burden of proof based on the preponderance of the evidence standard (more evidence on the individual employee's side than on the employer's side). An employee must generally show that he or she is a member of a protected group under the law and subjected to an adverse employment action (such as termination or demotion.) Then the employer must respond with a legitimate, non-discriminatory reason for the action that it took. Finally, the ultimate burden is on the employee to show that the reasons given by the employer are not true or are a "pretext" for discrimination, and that one of the prohibited classifications (such as age, race, gender or disability) were factors in the adverse action. This is usually a very factually-intensive process. If the employer has only one good reason for termination, it may not matter if the other reasons are proven false.

There are many other types of evidence that may prove discriminatory intent or motive or to show that the offered reasons are pretexts for discrimination. Two of the often used types of evidence are:

statements or conduct by the decision maker indicating a bias against a particular race or gender, or against older or disabled employees (or any other protected category). This is called "direct evidence" of discriminatory motive, but it is rare.

a statistically significant pattern of similar decisions. If there are only a few women employed as managers and yet most employees and applicants for management positions are female, there may be statistical evidence of discrimination based on gender.

Attorneys have the obligation to evaluate the client claims to ensure that there is either currently reasonable evidence or a reasonable likelihood that evidence will be found supporting each claim before filing a lawsuit. If they do not do so, both you and your attorney are at risk of being sanctioned by a court for filing a frivolous lawsuit.

The Damages: In most cases, particularly when a person has lost a job, an employee will need a contingent fee agreement that sets a percentage of your recovery as the fee. (See our [fee agreement] page for more information.) In most discrimination claims, the law allows attorneys representing employees to recover their attorney's fees and costs if they prevail or settle a claim. However, this is not guaranteed, and not the case for some other types of employment cases. It is not unusual for a case to cost hundreds of thousands of dollars in fees and tens of thousands of dollars in costs. Therefore, most attorneys cannot take a contingent fee case unless the merits and client are very strong and the damages are significant.

Example: if you were wrongfully fired from a job paying $50,000 per year, but you got a job after one year for a similar salary, your wage loss may not justify the risk of litigation. If the litigation fees are over $100,000 and the case settled for $50,000 (a 40% contingent fee or $20,000), without fees paid by the employer, the attorney could not stay in business for long.

On the other hand, it may be acceptable to an attorney to do this if the merits and client are so strong that it is worth taking the risk on the chance that the employer will pay all or most of the fees as part of a settlement or by judgment after trial, or there is the potential for additional types of damages to be awarded, such as emotional distress (pain and suffering). This is the practical part of evaluating cases. Because each attorney has a different view of risk and reward, and may evaluate these criteria with varying experience, if one attorney said "no," you can and should consult with others. If two or more attorneys tell you the same thing, however, especially about the legal merits of your case, then you should probably believe them.

For other practical information about working with attorneys, see the following page:

O'Malley & Madden Weekly

O'Malley & Madden WeeklyWeekly

Topic of the Week

Family Medical Leave Act - What does it provide and are you protected?

The Family and Medical Leave Act (FMLA) was created to help employees balance the demands of the workplace with the needs of their families. The Act requires covered employers to provide reasonable unpaid leave to employees for certain family and medical

Blog of the Week

The #MeToo movement has helped thousands of sexual harassment victims get justice against their harassers. Unfortunately for Amy Swyear, the Seventh Circuit has yet to realize the effects of the movement.

Thought for the Week

"Employers are increasingly using non-disclosure agreements to force workers to sign away their rights to speak out about harassment. By prohibiting this practice, the EMPOWER Act will help ensure that everyone has a safe and dignified work environment."